The question has arisen as to whether, having cancelled a letter of rehabilitation of a noble title by means of a recent Royal Decree, issued in the course of executing a judgment, such cancellation means that the title is in the same situation as it was when the applicant requested the rehabilitation or whether the holding of the title by the dispossessed rehabilitator is legally relevant. In other words, whether the time during which the dispossessed rehabilitant held the title is effective for the purposes of determining the period of limitation of forty years provided for in Article 3º of the Royal Decree of 8 July 1922, as amended by Royal Decree 222/1988, of 11 March. If it is irrelevant, as is ordinarily the case, such period will have been exceeded and therefore the dignity becomes non-rehabilitable. If, on the contrary, it is considered that the title existed during the time it was held by whoever first rehabilitated it and then found themselves dispossessed, it may again be susceptible to rehabilitation.
The question thus posed leads to the following: whether when a letter of rehabilitation is cancelled, it is because of a cause of nullity, of mere voidability or of ineffectiveness. If it is nullity, the possession maintained by the usurper cannot be taken into account and, consequently, does not interrupt the period of limitation for requesting rehabilitation.
If the cancellation is because of voidability or ineffectiveness, then the time occupied by the usurper is real and the period of limitation begins to run from the moment the usurpation ceased.
To determine the dies a quo of the period for requesting rehabilitation, regard must be had to the moment when the dignity rehabilitated is cancelled. It is not permissible to maintain that the title is in a situation of limitation, with no possibility of being rehabilitated, by alleging that the ownership held by the usurper is legally irrelevant or non-existent. In fact, such ownership has been real, certain, effective and, legally, valid and effectual, arising from the exercise of the royal prerogative. Its disappearance has been due to the exercise by the Monarch of his power of contrary empire. That is to say, it has been due to an act of revocation by the Monarch, adopting the criterion laid down by a declaratory judicial sentence.
Judgments in matters of noble titles do not declare, nor the nullity, nor the non-existence of the grants. Furthermore, when some lower court has made a ruling in this sense, the Supreme Court has set it aside (judgment of the Supreme Court of 4 February 2011). The letters—of succession or rehabilitation—are neither declared null, nor annulled by the Supreme Court on the basis of substantive grounds because they cannot be. If this were so, the grace power that belongs to the King would be undermined. Letters only disappear from legal reality when they are cancelled or revoked by the Monarch in the exercise of that grace power. And they do so from the moment such cancellation or revocation is adopted. The effectiveness of the judgments issued by the civil courts in noble proceedings has peculiarities. The action that is exercised in these is not constitutive but merely declaratory in a given sphere; specifically, in that of genealogical preferences. This means that the sentence neither declares the nullity, nor determines the annulment of the royal letter of succession or rehabilitation. It merely points out that the successful litigant has a better right than the defeated one, and may petition the Crown for the effectiveness of the right declared judicially.
In other words, the favorable judgment generates no change in the legal reality of the dignity. The defeated party, despite having lost the case, remains the holder of the grant until the King, as the case may be, exercises the power of revocation. And this—it must be insisted—because the sentence does not entail its declaration of invalidity. The ownership will only pass to the successful litigant if he petitions the Crown for the effectiveness of the right declared judicially, that is, if he promotes the administrative activity necessary to achieve, first, the revocation of that held by the defendant in the grant and, subsequently, the grant in his favor. This is an act of revocation—of disappearance of a valid act for reasons of expediency—and not an act of execution motivated by reasons of legality on the basis of the nullity or voidability of the grant (in this sense, TABOADA ROCA, M.; “Execution of Judgments on Better Right to Noble Dignities” in Annals of the Royal Academy of Jurisprudence and Legislation, no. 27, Madrid, 1997, p. 74 et seq.; TABOADA ROCA, M.; “The So-Called Third Party and the Clause Without Prejudice in Noble Law” in Studies in Homage to Roca Sastre, Madrid, 1974, vol. II, p. 716 et seq.; JIMÉNEZ ASENJO; E.; “The Noble Procedure” in Journal of Procedural Law, Madrid, 1955, p. 7 et seq.; JIMÉNEZ ASENJO, E.; Legal System of the Titles of Nobility of Spain, America, Philippines, Barcelona, 1955).
The basis of the royal activity for the effectiveness of the judgment lies in preventing the judicial decision on the better right to the title from resulting in the annulment of the Royal Decree of grant and, with it, the impairment of the sovereign power of the King. In other words, once the litigation is concluded and a final judgment is obtained in which the better right to a noble title is declared, neither its declaration of nullity nor the annulment of the pre-existing formal investiture occurs. One thing is the declaration of better right and another is the nullity of the ownership of the dignity, which is not produced by that. This explains why there is no execution proper of the unstable noble judgment by the winner in the complete terms provided for in the Civil Procedure Act.
As there is no declaration of invalidity, it is not permissible to consider as non-existent the ownership of the grant by the last holder, the usurper defeated in judgment. The cancellation or revocation of the letter entails the loss of its effectiveness, but not its declaration of nullity. Hence, the royal decrees cancelling the titles use the expression “repealing the foregoing Royal Decree of rehabilitation“. This makes it clear that this is about putting an end to a situation that exists, that has had full effectiveness, without any retroactive effect. That is to say, it does not assert that a situation of real ownership of the dignity has not existed but, on the contrary, it declares it and deprives it of effects. It is true that the term repealing is not correct—since it is predicated of norms and not of acts—but it is nonetheless expressive. Repeal operates—except where specifically and expressly provided otherwise—pro futuro.
Thus, if such possession has been real, effective and certain, the forty-year period referred to in Article 33 of the Royal Decree of 8 July 1922 for being able to request rehabilitation has its dies a quo at the moment when the title rehabilitated is cancelled in favor of whoever has been deprived of it.